Yesterday, an individual called wanting to know if the fact that she was pregnant would guarantee a successful H&C application because of the duty to consider the “best interests of the child.” The father is Canadian.Continue reading →

In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship. While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing. As he did not, there was no obligation on the officer to consider them.

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation. Continue reading →

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

establishment in Canada;

ties to Canada;

the best interests of any children affected by their application;

factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not related to a fear of return based on refugee determination factors;

health considerations;

family violence considerations;

consequences of the separation of relatives;

inability to leave Canada has led to establishment; and/or

any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Immigration, Refugees and Citizenship Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions:

Does the applicant have a history of stable employment?

Is there a pattern of sound financial management?

Has the applicant remained in one community or moved around?

Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?

Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?

Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

It is important to note that neither the legislation nor the courts have established what the threshold for sufficient establishment is. As the Federal Court noted in Kachi v. Canada (Citizenship and Immigration), it us unreasonable for visa officers to rule that there is insufficient establishment without first establishing what the benchmark is, especially considering that permanent residents and Canadian citizens are under no obligation to “to attend religious services, to partake in community activities, to volunteer, or to make friendships.”

Establishment and Legal Status in Canada

The jurisprudence is mixed on what the consequences of someone being without status, or precarious status, should be on the establishment factor. Being in Canada without status does not automatically lead to the non-application of H&C factors. In some decisions, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, has been found to not necessarily be a negative factor. In Sebbe v Canada (Minister of Citizenship and Immigration), the Federal Court stated the following about whether a temporary resident purchasing a house could be a positive establishment factor. Justice Zinn stated:

The Officer has taken a perverse view of the evidence of establishment forwarded by the applicants. Is every investment, purchase, business established, residence purchased, etc. to be discounted on the basis that it was done knowing that it might have to be given up or left behind? Is the Officer suggesting that it is the preference of Canadians that failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps taken to succeed will be worthless, because they knew that they were subject to removal? In my view, the answers to these questions show that it is entirely irrelevant whether the persons knew he or she was subject to removal when they took steps to establish themselves and their families in Canada. While some may suggest that in establishing themselves applicants are using a back-door to gain entry into Canada, that view can only be valid if the applicants have no real hope to remain in the country. In virtually all these cases applicants retain hope that they will ultimately be successful in remaining here. Given the time frame most of these applicants spend in Canada, it is unrealistic to presume that they would put their lives on hold awaiting the final decision.

The proper question is not what knowledge they had when they took these steps, but what were the steps they took, were they done legally, and what will the impact be if they must leave them behind.

As Madam Justice Kane noted in Deheza v. Canada (Immigration, Refugees, and Citizenship), such an approach would discourage temporary residents, and people who are without status but have valid reasons to stay in Canada, from establishing themselves in Canada.

However, in other decisions “flouting the law and ignoring lawful orders to leave the country” has resulted in the establishment factor being neutral or negative. In Canada (Minister of Citizenship and Immigration) v. Legault, for example, the Federal Court of Appeal stated:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The IRCC Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada. It states:

Circumstances beyond the applicant’s control

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”. In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA. She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application. The appellant sought leave to appeal of this decision. The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the Officer had to apply the appropriate test.

Operational Bulletin 202

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.

Background

Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelinesProcessing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).

CPC-Vegreville

In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to CIC officers that will be helpful to anyone with clients whose refugee claims are at least partially based on desertion. They include research sources, factors that officers should consider, and possible interview questions.

Pursuant to the Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, the best interests of the child in an H&C context involves an assessment of the benefits a child would receive if his parent was not removed, in conjunction with an assessment of the hardship the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent.

In Saporsantos, however, Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child.

An Overview of the Decision

The applicant in Saporsantos argued that the definition of “dependent child” in section 2 of the Immigration and Refugee Protection Regulations (the “Regulations“)determined whether a person was entitled to a best interests of the child analysis. Section 2 of the Regulations defines “Dependent Child” as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

The Court, however, noted that section 2 of the Regulations began with the statement that:

2. The definitions in this section apply in these Regulations.

The Court accordingly concluded that the IRPA and its Regulations are two different pieces of legislation. Thus, the definition of “dependent child” in the Regulationsdoes not determine what a child for H&C consideration in IRPA.

After concluding that s. 2 of the Regulations did not determine the issue, Justice Shore noted that the using the definition of “dependent child” to interpret the meaning of “child” is contrary to the presumption of consistent expression. As noted in Sullivan on the Construction of Statutes (5th edition, 2008), the presumption of consistent expression states that:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a meaning has been adopted, it makes sense to infer that where a different form of expression is used, a different meaning is intended. (Sullivan at pp. 214-215).

The concluded that the appropriate reference to determine the meaning of “child” was not IRPA’s Regulations, but rather the United Nations Convention on the Rights of the Child (the “Convention“). The Court noted that while the Convention has not been enacted into Canadian law, the jurisprudence is clear that IRPA must be interpreted in accordance with international treaties, that the values reflected in such treaties may help inform Canadian statutory interpretation, and that the importance of the Convention has been specifically stressed in Canadian immigration jurisprudence.

The Convention defines a child as:

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Accordingly, practitioners should note that disabled adult clients no longer appear to be entitled to a best interests of the child analysis for H&C purposes.

The June 2010 RIMBits issued the following alert about the decision:

Definition of child for best interest of the child assessments

Q. The applicant is a mentally challenged who is cared for by her grandparents. The applicant’s mother is a Canadian citizen, having gained permanent residence through the Skilled Worker program. She is barred from sponsoring her daughter under the Family Class due to paragraph 117{9)(d) of the Regulations as she did not declare her during the initial immigration process. The applicant filed a permanent residence application (FC3) seeking the waiver of the ss. 117(9 )(d) exclusion on H&C grounds. Did the officer err by failing to make a proper determination of the best interest of the child directly affected by the decision, the applicant herself, in accordance with section 25 of IRPA?

A. (Result of judicial review) The fact that the applicant may fit the definition of a “dependent child” pursuant to section 2 of IRPR is not determinative of whether she is a “child” for the purposes of an H&C application. “Dependent child” as defined in R2 deals is not congruent with the term “child” referred to in A25(1). Justice Shore also found that binding international instruments play a special role in the interpretation of IRPA. The duty to conduct a BIOC assessment is intimately linked to the Convention on the Rights of the Child which defines a child as a person under the age of eighteen. Therefore, it would be inconsistent to give the term “child” under IRPA a different meaning. The Court found that the applicant’s developmental delay does not entitle her to a BIOC assessment. The Convention on the Rights of Persons with Disabilities treats children and adults with disabilities differently and only requires a BIOC assessment for children with disabilities. Therefore, best interest of the child determinations should not be made for dependent adults.

Nonetheless, common sense would indicate that the impact that a guardian’s separation would have on a disabled adult would still be a significant factor in determining whether there are sufficient H&C grounds to qualify for an H&C exemption.

The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect. In brief, there are now several restrictions on when H&C applications can be made.

Permanent Residence Applications Only

Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states:

Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

The following table explains how Citizenship and Immigration Canada will process H&C applications in certain scenarios.

If

Then

CIC receives the H&C application on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application)…

the H&C application will NOT be examined, fee and application will be returned.

the application is received on or after June 28, 2012, and the applicant has a pending refugee claim….

the H&C application will NOT be examined, fee and application will be returned.

the application is received on or after June 28, 2012, and the applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD).

the H&C application will NOT be examined until after 12 months have passed since the date of the last decision, fee and application will be returned, unless an exception applies.

the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim AFTER substantive evidence was heard at their RPD hearing

the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be withdrawn, fee and application will be returned, unless an exception applies.

the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim BEFORE substantive evidence was heard at their RPD hearing

the H&C application will be examined.

the application is received on or after June 28, 2012, and the applicant has been determined to be a “designated foreign national”

the H&C application will NOT be examined for 5 years.

Exceptions

The exceptions mentioned above are 1) risk to life due to medical condition and 2) adverse effect on the best interests of a child directly affected. Special rules apply to claiming these exceptions, and it is important that applicants be specific that they are requesting them.

Many people are often try to sponsor an adult sibling only to learn that adult siblings (and adult children) are not eligible to be sponsored under the family class. However, in certain cases, such individuals may be eligible for humanitarian & compassionate grounds as de facto family members.Continue reading →

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DISCLAIMER

Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.